Saturday, October 27, 2007

The Sixth Committee of the UN General Assembly has been meeting for the past three weeks. On Monday, the Committee will take up the Report of the International Law Commission. Here are the UN Press Releases describing the Committee's work to date during the current session:

Thursday's Guardian Unlimitedreported on the frantic lobbying these last few weeks in anticipation of next Wednesday's Senate Foreign Relations Committee vote on the Law of the Sea Convention. Here's the story:

Conservative senators and critics of the United Nations are attempting once again to stop the US joining an international treaty on access to the world's waters, despite support for it from the military and George Bush.The UN's Convention of the Law of the Sea, already ratified by more than 150 countries, sets up a system to manage navigation and explore the oceans. Environmental groups endorse the treaty's protection of global fish stocks, the US navy endorses its assurance of free movement and the oil industry's trade group endorses its promise of a level playing field for companies staking claim to drill in the Arctic.

But Republican antagonists in the Senate, several of whom have derailed the treaty twice in the past, discount even the Bush administration's backing. They yesterday blocked a preliminary ratification vote, and in doing so declared it an auspicious date for foes of internationalinstitutions.

"There is no better time to celebrate the 62nd birthday of the United Nations than to say we don't want it," said Jim Inhofe, the Oklahoma Republican senator who leads an annual effort to withhold US funds from the UN.

The treaty runs more than 200 pages, giving forces on both sides of the debate ample opportunity to divine its potential consequences. At its core, however, the clash recalls the ideological battles over invading Iraq, pitting America-first lawmakers against those who decry the consequences of "cowboy diplomacy".

Scott Paul, deputy director of government relations at the grassroots group Citizens for Global Solutions, noted the treaty's broad support among Democrats and pressed moderate Republicans to speak up. "The fact we've been unable to ratify a treaty that's so strongly in our interests is, frankly, an indictment of our foreign policy," Mr Paul said.

Citing polls that show widespread support in the US for working with allied nations in the aftermath of Iraq, he added: "At times that will entail some measure of sacrifice. If we can't do it on the law of the sea treaty, which entails no sacrifice, how are we going to do it at any other time?"

The Senate foreign relations committee now is poised to approve the treaty next week, after which two-thirds of the full chamber must vote in favor to ensure ratification. Mr Bush has dispatched John Negroponte, the hawkish deputy secretary of state, and senior navy officials to help lobby Republicans.

That may not be enough to overcome the Republicans' famous mistrust of the UN. Trent Lott of Mississippi, the Republicans' second in command in the Senate, said he has studied seafaring treaties since law school. His advice to the military: "Have a strong and robust navy . . . so you're not going to have somebody tell you where you can't go."

Republicans on the foreign relations panel, who suspect chair Joseph Biden and ranking member Richard Lugar of stacking hearings on the treaty with more advocates than critics, have begun scheduling their own private briefings on the law of the sea.

"We've reached out to a number of groups," said Bob Corker, freshman Republican from Tennessee. He declined to name the briefers, acknowledging that he had spoken so far only to opponents.

Outside the Capitol, the roster of foes looking to sink the treaty reads like a who's who of the Reagan era: Frank Gaffney, the former Richard Perle aide who now fronts the Center for Security Policy; Phyllis Schlafly of the Eagle Forum; Edwin Meese III, the Reagan attorney general embroiled in the Iran-Contra scandal; and Oliver North, the Marine officer indicted in that affair. Indeed, critics of the 202-page treaty deride its tone as reminiscent of the Cold War. When Mr Lott referred to Russia's membership in the pact, Jeff Sessions of Alabama "corrected" him by noting that "the Soviet Union" had signed on.

Later Mr Sessions likened the treaty - which conservatives have dubbed LOST - to the tale of Gulliver and the Lilliputians, with the US in the starring role. "You've got the giant, and they tie [him] down with this string, then this string. [He] is not able to move," Mr Sessions said.

Progressive commentators, such as Steve Clemons and Matt Stoller, have drawn attention to the treaty as a worthy cause.

Andrew Rice, the Democratic state senator aiming to unseat Mr Inhofe next year, chastised the Oklahoman for standing in the way of military priorities by blocking the treaty.

Treaty opponent Steven Groves of the conservative Heritage Foundation, where Mr Meese is a senior member, dismissed the contention that trusting the military's strategy - Republican rhetoric of the recent Iraq hearings with General David Petraeus - would oblige Republicans to back the treaty.

"Any senator who says, 'we'll support any policy position taken by any branch of the US military and not give it any second thought or critical study' is not the type of senator I would trust," Mr Groves said.

When the treaty will come to a vote remains to be seen. Pending claims to the Arctic and Antarctic seabed planned by the UK, Australia, Russia and other signatories to the compact have added to its momentum, but Mr Lott and three other Republican leaders vowed that a final vote would not take place.

"I'm not going to get in a twit about what the Swiss or Belgians may think about us," Mr Lott said. The treaty would come to the floor with procedural privileges that prevent a filibuster, leaving conservatives little choice but to broadcast their warnings as loudly as possible. In 2004, then-majority leader Bill Frist refused to bring the treaty for a vote, but new Democratic majority leader Harry Reid is unlikely to do the same.

In the meantime, the law of the sea has picked up steam as the conservative base evaluates Republican presidential candidates. Mike Huckabee, former governor of Arkansas, and former Tennessee senator Fred Thompson have pointedly broken with Mr Bush on the treaty. "At a time when customary international law in this area has proven sufficient, I believe the efforts of treaty proponents would be better spent reforming the United Nations," Mr Thompson said yesterday. John McCain, the Arizona senator and decorated navy pilot, declined to answer a question about the treaty.

On Tuesday, October 23, 2007, the President transmitted to the Senate, for its advice and consent to ratification, the Protocol of Amendments to the Convention on the International Hydrographic Organization, done at Monaco on April 14, 2005. The transmittal package (Treaty Doc. 110-9) is here. The letter of transmittal states that the Protocol "will facilitate the reorganization of the International Hydrographic Organization (IHO). The IHO, which is a technical and consultative international organization head-quartered in Monaco, facilitates safe and efficient maritime navigation throughout the world. It accomplishes these objectives by facilitating the coordination of the activities of national hydrographic offices, promoting uniformity in the nautical charts and documents generated by such offices, encouraging the adoption of reliable surveying methods, and fostering the development of the science of hydrography. Reorganization of the IHO will result in a more flexible, efficient, and visible organization."

Thursday, October 25, 2007

Robert D. Sloane (Boston Univ. - Law) will give a talk today at the Southern Methodist University School of Law Faculty Forum on "The Cost on Conflation: On the Dualism of Jus Ad Bellum and Jus in Bello."

The latin adage 'ubi commercium, ibi jus' reflects the insight that the efficiency of markets and trade depend on legal guarantees of market freedoms (such as freedom of contract, property rights), legal security (e.g. as incentive for investments and division of labour) and on legal limitations of ‘market failures' as well as of 'government failures'. Since Adam Smith, economists increasingly acknowledge these interdependencies between economic, legal and social order, for example between the economic objective of promoting consumer welfare through legal guarantees of consumer-driven competition and open markets, and the democratic objective of protecting individual self-government and peaceful cooperation among citizens through constitutional guarantees of equal freedoms and social justice. The lawyers, economists and politicians belonging to the post-war German schools of 'ordo-liberalism' (including German chancellor L. Erhard and his secretaries of state W. Hallstein and A. Müller-Armack who represented Germany in the EEC Treaty negotiations) succeeded in basing the German and EC 'economic constitution' on constitutional guarantees of market freedoms, competition rules and a 'social market economy' committed to respect for human rights. Yet, the EC initiatives for 'constitutionalizing' the world trading system - for example, by correcting 'international market failures' by means of new WTO competition, environmental, investment and development rules, and for limiting the WTO's 'governance failures' by democratic and judicial reforms - appear to have foundered after more than 5 years of negotiations in the 'Doha Development Round.' This contribution discusses 'constitutional problems' of national and intergovernmental economic governance from the perspective of constitutional theory and constitutional economics by using the example of the disagreement among the 151 WTO Members on defining the 'development objectives' of the WTO's 'Development Round.' Constitutional theory suggests to define development as individual freedom, consumerdriven competition and autonomous development of human capacities protected by constitutional rights that limit abuses of power at national, transnational and international levels of human interactions.

Transnational cases have become a prominent part of the litigation landscape in the United States. Class actions against foreign defendants are widespread, the Alien Tort Claims Act has emerged as a mainstay of proceedings to enforce international human rights law in U.S. courts, and the globalization of the economy has led to an increase in transnational regulatory litigation. In all these cases, however, the parties need to ask themselves whether an ensuing judgment or settlement can be recognized or enforced abroad. For quite some time, the perception in the United States has been that U.S. judgments do not fare very well when the time comes to recognize or enforce them abroad. If so, the resolution of a considerable number of transnational cases in this country would have no effect abroad, not exactly the result that lofty talk about "transnational adjudication" would seem to entail.

In this paper, I intend to provide some answers to the question how well U.S. judgments really fare in Europe, where many of the important trading partners of the United States are located. I conclude that, on average, the recognition and enforcement of U.S. judgments does indeed face more obstacles in Europe than do European judgments in the United States. However, much depends on the country, the subject matter involved, the person of the defendant, and the connection of the dispute to the recognition state, among other things. Thus, a multilateral judgments convention, such as the one initiated by the United States in 1992, could indeed bring similar improvements as have resulted from various conventions and EC regulations adopted by the Europeans regarding their own judgments. The same goes for the federal recognition statute recently proposed by the American Law Institute.

International criminal tribunals are often criticized for having minimal influence on the states over which they exercise jurisdiction. This article argues that the International Criminal Tribunal for the Former Yugoslavia has had a far more positive impact on domestic governance in Bosnia & Herzegovina than previously assumed by both the academic and policy communities. The article develops a theoretical model to explain the impact of international criminal tribunals on domestic governance and tests that model against the ICTY's influence in Bosnia. More specifically, the article advances the claim that the nature of the tribunal's jurisdictional relationship with domestic judicial institutions and the incentives for national and international officials created by that jurisdiction interacted with changing preferences of domestic actors, thereby catalyzing judicial reform and institutional development in Bosnia. Based on an in-depth study of the ICTY's interactions with Bosnia from 1994 to 2006, the article presents new empirical evidence of the Tribunal's early effect of freezing out the activation of the domestic judiciary in Bosnia and its later role in the establishment of the new State Court of Bosnia & Herzegovina with war crimes jurisdiction The article attributes the variance in the Tribunal's influence over time in large part to changes in its jurisdictional relationship with national courts brought about by the ICTY's Completion Strategy and suggests the significance of a tribunal's institutional design, and particularly its jurisdictional relationship, for the direction and intensity of its influence on domestic institutional development.

The focus on development and poverty reduction by the World Bank and the International Monetary Fund has increased the scope, and opportunity, for these highly influential international financial institutions to consider the human rights implications of their policy-based operations. Some notable advances have been made, such as greater attention by the Bank to the links between securing human rights and economic growth. Still, the negative impact these institutions themselves may have on the exercise of basic socio-economic rights of people in borrowing countries, due to the particular policies they pursue, has not been confronted. Given the functioning of international economic governance today it is necessary to consider the human rights accountability, not just of the developing states, but of all international actors that influence the direction of their social and economic policies.

Economists generally agree that free trade leads to economic growth. This proposition is supported both by theoretical models and empirical data. Further, while the empirical evidence is more limited on this question, the general consensus among economists holds that trade restrictions are likely to hurt the poor. Even if the latter consensus turns out to be wrong, if free trade leads to superior growth, governments would have more resources to redistribute to the poor. It is surprising then that philosophers and human rights scholars do not advocate liberalizing trade as a way to improve the welfare of the poor as a class. While many scholars in these fields are silent with respect to the effect of free trade on the poor, some actually argue that liberalized trade is harmful for the poor, contrary to the claims of economists. In this article, we argue that any serious scholar concerned with the plight of the poor needs to address the theory and evidence regarding the effects of trade liberalization on economic growth, suggesting that the standard policy prescriptions of the philosophers and human rights scholars are, at best, of second order concern and, at worst, likely to be counterproductive in terms of improving the welfare of the poor.

This article examines the growth of 'governance beyond the state'. It highlights the problems resulting from the large number of organizations, networks and practices which are making authoritative rules and policies outside the state, and which lie beyond the control of national democratic and constitutional structures. Having set out the double dilemma of the rapid growth of transnational governance and its problematic relationship to democracy, the article criticizes existing approaches to the dilemma. The dominant current perspective, which I label the 'compensatory approach', takes the view that democracy cannot be transposed from the national to the transnational arena, and that other compensatory mechanisms must be found to regulate transnational governance. The paper takes issue with this general consensus that democratization of transnational governance is not a plausible endeavor, and argues that any convincing attempt to reform transnational governance should not avoid the democracy problem. While it is true that our contemporary understanding of the concept of democracy is very closely tied to the state context, the paper argues that we should nevertheless not jettison the concept when attempting to design more legitimate governance structures beyond the state. Rather we should acknowledge the powerful normative and social appeal of democracy as a governing ideal, and should try to identify its conceptual 'building blocks' with a view to thinking about the possible design of legitimate democracy-oriented governance processes beyond and between states.

In this spirit, the article proposes an approach to transnational governance which I call the democratic-striving approach. This approach is built on one particular building-block of democracy, which is the fullest possible participation and representation of those affected, with a view to ensuring the public-oriented nature of the norms and policies made. To illustrate the general argument in more concrete terms, the article draws on the example of the International Financial Institutions and the experience of the recent reform of their development assistance policies, known as the Poverty Strategy Reduction Program. The example demonstrates the practical potential of the democratic-striving approach to the reform of transnational governance, and suggests that it could be applied to many other instances of governance beyond the state.

Judge Theodor Meron (International Criminal Tribunal for the Former Yugoslavia) will give the keynote address today for Duke Law School's International Week, sponsored by Duke's Center for International & Comparative Law. The subject is "Challenges of Impunity."

Benedict Kingsbury (New York Univ. - Law) will give a lecture today at the University of Oxford Department of Politics and International Relations Lecture Series on Foundations of Governance in a Globalized World. The subject is "Public International Law: Who is the Public and What is Law Seeking to Govern?"

August Reinisch, The International Relations of National Courts: A Discourse on International Law Norms on Jurisdictional and Enforcement Immunity

Manfred Rotter, The Temelin Appeasement. A Microcosmic Case Study

Héléne Ruiz Fabri, Culture Seized by Globalization: Can International Law Be of Any Help? Reflections on Possible Future Legal Implications of the UNESCO Convention on the Protection and Promotion of the Diversity of Cultural Expressions

Christoph Schreuer, Investment Protection and International Relations

Bruno Simma, Human Rights and State Responsibility

Kurt R. Spillmann, Legal or Religious Norms? A Personal Reflection

Daniel Thürer & Malcolm MacLaren, Military Outsourcing as a Case Study in the Accountability and Responsibility of Power

Christian Tomuschat, Foreign Policy Issues before Domestic Courts. The Rule of Law under Challenge

László Valki, Israel in the UN: Some False Beliefs

Wolfgang Wessels, From the Ivory Tower to the Television Studio. Contributions of Academia to the European Debate

Georg Winckler, The Stability and Growth Pact: Does it Make Sense?

Rüdiger Wolfrum, Legitimacy in International Law

Karl Zemanek, Is the Security Council the Sole Judge of its Own Legality? A Re-Examination

Sunday, October 21, 2007

On Friday, October 19, the Senate, by the requisite two-thirds vote, agreed to the resolution of advice and consent to ratification of the Protocol between the United States of America and the Kingdom of Denmark to the Treaty of Friendship, Commerce and Navigation of October 1, 1951, signed at Copenhagen on May 2, 2001 (Treaty Doc. 108-8). The Senate Foreign Relations Committee favorably reported the Protocol in September, and the Committee submitted its report early last week.

Florian Kremslehner, "Lis Pendens" and "Res Judicata" in International Commercial Arbitration: How to Deal with Parallel Procedings: How to Determine the Conclusive and Preclusive Effects of Arbitral Awards

Peter Vcelouch, Interim and Protective Measures Under the New Austrian Arbitration Act